Isabella Carter
The US Constitution's individual liberties protect against actions by government officials but not by private persons or entities. However, the Supreme Court has, in some cases, deemed private entities to be state actors, thus holding them responsible for constitutional violations. The Supreme Court has also narrowed the circumstances in which private actors are deemed state actors, making it difficult to hold non-governmental entities responsible for constitutional violations. The First Amendment protects free speech rights from government action restricting them, but it does not apply to private regulation of speech. The judiciary's approach to analyzing the constitutional status of 'boundary agencies' with varying degrees of governmental involvement remains unsettled.
| Characteristics | Values |
|---|---|
| The US Constitution applies to private entities | With the exception of the Thirteenth Amendment’s ban on slavery, the Constitution protects against actions by government officials but not against actions by private persons or entities |
| Courts have subjected private entities to a higher level of scrutiny and limited the types of services and functions that Congress can delegate to them | |
| In some cases, courts have held private entities to be state actors in conjunction with police actions taken against people engaged in First Amendment activity | |
| The Supreme Court has narrowed the circumstances in which private actors are deemed to be state actors | |
| The First Amendment protects free speech rights from government action restricting them, but this doesn't typically apply to private regulation of speech | |
| Purely commercial speech is entitled to First Amendment protection | |
| The First Amendment doesn't give Americans blanket immunity to say whatever they want, but it does protect against government censorship |
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What You'll Learn
The US Constitution and private companies' censorship
The First Amendment of the US Constitution, passed by Congress on September 25, 1789, and ratified on December 15, 1791, gives everyone in the US the right to hear all sides of every issue. It also gives them the right to make their own judgments about those issues without government interference or limitations. However, the First Amendment only protects citizens from government censorship. It does not extend to private citizens, businesses, or organizations.
Private companies are legally allowed to establish regulations and guidelines within their communities, including censorship of content or banning members. For instance, a private school can suspend students for criticizing school policies. Similarly, a private business can fire an employee for expressing political views at work, and a private media company can refuse to publish or broadcast opinions it disagrees with.
The judiciary's approach to analyzing the constitutional status of 'boundary agencies' with varying degrees of governmental involvement and oversight is still evolving. In the Supreme Court case Department of Transportation v. Association of American Railroads, the Court reviewed a determination by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) that concluded that Amtrak was a private entity "with respect to Congress's power to delegate regulatory authority." This led the D.C. Circuit to invalidate joint regulations established by Amtrak and the Federal Railroad Administration.
The widespread use of the internet and social media platforms has presented new challenges in defining the types of speech protected by the First Amendment. Social media platforms, as private companies, can regulate or restrict speech hosted on their platforms. For example, Facebook and other social media platforms can restrict speech as they are private entities. However, the public function exception may apply to social media platforms in certain cases, as they are increasingly used by government actors.
Washington's Influence on the Constitution
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The First Amendment and free speech
The First Amendment to the United States Constitution protects the right to free speech against government interference. This includes federal, state, and local government actors such as lawmakers, elected officials, public schools and universities, courts, and police officers. However, it does not apply to private citizens, businesses, or organizations.
Private entities, such as private schools, businesses, or media companies, are not bound by the First Amendment and can restrict speech within their sphere without violating the First Amendment. For example, a private school can discipline students for their speech, a private business can take action against employees for expressing political views, and a private media company can choose to broadcast only opinions it agrees with.
The Supreme Court has clarified that private operators of public access channels are not subject to the First Amendment. In the case of Manhattan Community Access Corporation v. Halleck, the Court held that a private entity designated to operate public access channels could ban speakers based on the content of their speech, which a government entity could not do without violating the First Amendment.
While the First Amendment protects against government censorship, private individuals and groups often engage in censorship as well. This type of censorship is legal as long as government entities are not involved and does not violate the First Amendment. Private organizations like the National Coalition Against Censorship (NCAC) and the American Civil Liberties Union (ACLU) work to protect free speech rights in these contexts.
It is important to note that the First Amendment does not give Americans unlimited freedom of speech. It specifically protects the right to critique the government, but individuals can still face consequences for their speech in certain contexts. Additionally, commercial speech, or speech proposing a commercial transaction, is generally not protected by the First Amendment, as seen in the Chrestensen doctrine.
In summary, the First Amendment protects free speech rights from government interference but does not restrict private entities from regulating speech within their sphere.
The Constitution's Article One: Congress' Formal Powers
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The US Constitution and private entities' civil rights violations
The US Constitution outlines the country's fundamental laws and protects the rights of its citizens. While it primarily applies to governmental entities, private entities are also subject to its provisions in certain contexts, particularly when it comes to civil rights violations.
The Constitution's protections against civil rights violations extend beyond just governmental actors. For instance, the Civil Rights Act of 1964, which prohibits discrimination in public accommodations, education, and federally assisted programs, applies to both public and private entities. Title VII of this Act makes it unlawful for an employer to discriminate based on race, colour, religion, sex, or national origin.
Additionally, federal civil rights statutes, as outlined by the FBI, make it a crime for any person acting under the colour of law or custom to willfully deprive another person of their constitutional rights. This includes private individuals or entities acting on behalf of a governmental authority. The statutes also prohibit conspiracies to interfere with an individual's constitutional rights, such as their right to free exercise or enjoyment of those rights.
Courts have applied different standards when reviewing challenges to the delegation of authority to private versus governmental entities. Private entities are subjected to a higher level of scrutiny, and there are limitations on the types of services and functions that can be delegated to them. This distinction becomes more complex when dealing with boundary agencies that have both public and private aspects, as the courts' approach to determining their constitutional status remains unsettled.
In terms of remedies for civil rights violations, individuals can seek compensatory damages for intentional discrimination, including retaliation, and bodily harm and emotional distress. Additionally, when a federal-funds recipient violates the conditions of Spending Clause legislation, they may be required to compensate the Federal Government or a third-party beneficiary for the loss caused.
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The US Constitution and private entities' state action
The US Constitution generally protects individual liberties against actions by government officials, but not against actions by private persons or entities. Civil rights lawsuits seeking to uphold constitutional rights are therefore limited to situations involving "state action", or government officials exercising their governmental power.
However, the Supreme Court has ruled that private entities can be deemed state actors in certain circumstances, thereby allowing constitutional rights to be enforced against nongovernmental actors. For instance, in Wickersham v. City of Columbia, a private veterans' organization was deemed a state actor due to the presence of Columbia police officers at an event where the organization imposed restrictions on expressive activity.
Another example is the Supreme Court's ruling in Department of Transportation v. Association of American Railroads, where Amtrak was considered a private entity with respect to Congress's power to delegate regulatory authority. This ruling invalidated joint regulations established by Amtrak and the Federal Railroad Administration.
The Court has also established that commercial speech is entitled to First Amendment protection, as consumers have an interest in the unrestricted flow of commercial information. This protection applies to government regulation of private speech but typically does not apply to private regulation of speech.
The judiciary's approach to analyzing the constitutional status of 'boundary agencies' with varying degrees of governmental involvement remains unsettled. While the Court has moved to strike a balance between imposing constitutional obligations on state actors and preserving freedom for private persons and entities, the narrowing of circumstances in which private actors are deemed state actors has made it more difficult to hold nongovernmental entities responsible for constitutional violations.
Jefferson's Constitution: Strict or Loose Interpretation?
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The US Constitution and private entities' commercial speech
The US Constitution's First Amendment protects the right to free speech, which generally safeguards private speech from government restrictions. However, it does not protect against speech restrictions imposed by private entities. Social media sites, for example, are often owned by private companies, so they are not bound by the First Amendment, and any regulations they impose on speech are exempt from First Amendment protections.
Commercial speech, or speech by corporations, is defined as speech that proposes a commercial transaction or promotes a commercial activity. It also includes expressions related to the economic interests of the speaker and their audience, such as product or service advertisements. In 1979, the Court explicitly established that purely commercial speech is entitled to First Amendment protection, citing consumer interest in the unrestricted flow of commercial information. This was further established in the 1980 case Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, which set a precedent for analyzing the constitutionality of commercial speech restrictions.
Despite this, commercial speech may be subject to different standards of protection than non-commercial speech. In some cases, commercial speech may be entitled to less protection, as seen in the Nike example, where the outcome would have determined whether Nike's statements were commercial or non-commercial speech. Additionally, limitations on corporate speech can manifest as campaign finance regulations, triggering First Amendment challenges. Courts evaluate the constitutionality of these regulations using strict scrutiny or exacting scrutiny standards.
The distinction between commercial and non-commercial speech can become blurred when commercial speech takes on a political dimension, such as when a corporation donates to political candidates or engages in advocacy. In such cases, courts must consider whether the primary purpose of the speech is commercial or if it serves a larger public interest. Northwestern University law professor Martin Redish argued that commercial speech is essential to the flow of ideas necessary for a democratic society and should be protected.
The Supreme Court's interpretation of the First Amendment's right to free speech as it applies to commercial speech is still evolving, as seen in cases like Citizens United v. Federal Election Commission, which strengthened the idea that the law cannot discriminate against corporations as speakers. However, the ruling was criticized for increasing the influence of wealthy corporations in the political system. The judiciary's approach to analyzing the constitutional status of entities with both public and private aspects also remains unsettled, further complicating the application of the US Constitution to private entities and commercial speech.
Antifederalists' Opposition to the New Constitution Explained
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Frequently asked questions
The US Constitution does not generally apply to private entities, except for the Thirteenth Amendment's ban on slavery. The individual liberties guaranteed by the Constitution protect against actions by government officials but not private persons or entities.
The "nondelegation doctrine" limits Congress's authority to delegate its legislative power to entities other than governmental bodies. Courts have subjected private entities to a higher level of scrutiny and limited the types of services and functions that Congress can delegate to them.
It is difficult to hold private entities responsible for constitutional violations as the Supreme Court has narrowed the circumstances in which they are deemed to be state actors. However, civil rights advocates can still pursue private actors, and there have been cases where private entities have been held responsible for constitutional violations in conjunction with police actions.
The First Amendment protects freedom of speech from government action restricting it, but it does not typically apply to private regulation of speech. Private individuals and groups can engage in censorship as long as government entities are not involved, and this presents no First Amendment implications.
